Schexnaider v. Rome
| fullCitation | Schexnaider v. Rome, 485 So.2d 245 (La. App. 1986) |
| Decision Date | 05 March 1986 |
| Citation | 485 So.2d 245 |
| Docket Number | No. 84-1163,84-1163 |
| Parties | Sandra A. SCHEXNAIDER, Plaintiff-Appellant, v. Anthony G. ROME, d/b/a Roman Mill Bakery, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Olivier and Brinkhaus, John L. Olivier, Sunset, for plaintiff-appellant.
Martin and Taulbee, Terry L. Rowe, Allen, Gooch, Bourgeois, Breaux & Robison, P.C., Frank A. Flynn, David S. Cook, Lafayette, for defendants-appellees.
Before DOMENGEAUX, FORET and KING, JJ.
The issue presented on appeal is whether or not the trial court decision denying plaintiff recovery against an insurer under its automobile liability insurance policy, for the reason the policy was void ab initio, is correct.
This litigation involves a personal injury suit brought by a guest passenger, Sandra A. Schexnaider (hereinafter referred to as the plaintiff), against her host driver, Anthony G. Rome (hereinafter referred to as Rome), and his automobile liability insurer, Mid-American Indemnity Company (hereinafter referred to as the insurer). The insurer asserted the defense that the automobile liability insurance policy issued by it to Rome was void ab initio because Rome and a third-party-defendant, Richard B. Baggett, an insurance broker, colluded to provide false and misleading information which materially affected acceptance of the insurable risk and issuance of the policy by the insurer. After trial on the merits on July 11, 1984 the trial court rendered judgment, which was signed on September 27, 1984, in favor of the insurer and rejecting plaintiff's demands against it. The trial court assessed costs of court against the insurer but rendered judgment on the insurer's third party demand in favor of the insurer against the third-party-defendant, Richard B. Baggett, for these court costs.
Both plaintiff and the insurer appeal. Plaintiff alleges the following assignments of error on appeal:
(1) The trial court erred in admitting, over objection of plaintiff's counsel, testimony of Richard B. Baggett, an insurance broker, as to what Rome told him at the time of applying for insurance for the purpose of proving intent to deceive, misrepresentation and fraud on the part of Rome;
(2) The trial court erred in finding that the insurer met its burden of proof in showing that Rome filed a false application for liability insurance with intent to deceive;
(3) The trial court erred in failing to find that Richard B. Baggett was an agent for the insurer, at least for certain purposes, including the preparation and filing of application forms supplied by the insurer, so that any fraud and/or misrepresentations engaged in by him in carrying out those functions are imputable to the insurer and estop it from denying coverage on the policy of automobile liability insurance which it issued;
(4) The trial court erred in finding that the insurer met its burden of proof in proving a special defense to coverage such as would make the insurance policy issued void ab initio; and
(5) The trial court erred in failing to find coverage for the claims of plaintiff, Sandra A. Schexnaider, under the automobile liability insurance policy issued to Rome.
The insurer alleges on appeal that the trial court erred in assessing court costs against it, while at the same time, dismissing plaintiff's suit against it. We affirm in part, amend in part, reverse in part, and render judgment.
The trial court, in its Reasons for Judgment, made findings of fact in this case which we adopt as our own and which are as follows:
"On April 12, 1982, Mrs. Sandra A. Schexnaider was a guest passenger in an automobile driven by Anthony G. Rome, when she became involved in a serious accident due to the negligence of Rome. She has filed this suit for personal injuries against him and his insurer, Mid American Indemnity Company. There are other issues in this case which have passed aside, however, on the trial held on July 11, 1984, the two issues presented to the Court were whether or not Mrs. Schexnaider was an employee of Mr. Rome thereby precluding her from filing a tort suit against him, and whether or not the insurance policy issued by Mid American Indemnity Company to Mr. Rome was valid and covered this accident. It is a finding of this Court that the insurance policy issued by Mid American Indemnity Company is invalid and void ab initio and unfortunately affords Mrs. Schexnaider no coverage. Mr. Anthony G. Rome was a nominal party defendant but he was not served and his whereabouts are unknown.
For some months prior to the date of the accident Mr. Rome had acquired certain insurance policies on other matters from Richard B. Bagert [sic], who did business as the Bagert [sic] Insurance Agency. After the accident of April 12, 1982, Mr. Rome approached Mr. Bagert [sic] to acquire automobile liability coverage on the vehicle he was driving while the accident occurred injuring Mrs. Schexnaider. In collusion Mr. Rome filed a false application and predated it to April 8, 1982, some four days before the accident. In this he was joined by Mr. Bagert [sic] in making false statements to the company. Mr. Bagert [sic] is an insurance broker and has no authority on his own to bind a company. In due course he sent this application to Mid South Underwriters, Inc., who is an insurance agent and who is the only agent for Mid American Indemnity Company. The application seemed valid, therefore Mid South Underwriters procured a policy of insurance written by Mid American Indemnity Company, covering the vehicle involved in the accident and the date of the coverage was April 8, 1982.
The application called for the driver's license of Mr. Rome and he gave them the number of a California driver's license. It was necessary to send this information to California to get his driving record and when it was returned it was found out that he had an expired license. Mid American Indemnity Company then got his Louisiana driver's license and obtained from the Louisiana Department of Public Safety a statement showing Rome's many traffic violations. Prior to the accident Rome had the following convictions, forfeitures or interviews:
7-26-80 -- Speeding
7-29-80 -- Signs
5-05-81 -- Speeding
6-01-81 -- Speeding
8-03-81 -- Speeding
9-18-81 -- D. W. Interview
10-19-81 -- Speeding
11-10-81 -- Speeding
3-10-82 -- Speeding
5-03-82 -- Affidavit
5-11-82 -- Speeding
The application failed to show that Mr. Rome had this large amount of speeding violations and the evidence is abundantly clear that had Mid American Indemnity Company had this information they would not have issued him a policy. It is also a fact and evident that had they known he had had an accident on April 12, 1982, they would not have issued the policy with an earlier date and not even at a later date.
A fraud was conspired and committed by Anthony G. Rome and Richard B. Bagert [sic] against the Mid American Indemnity Company."
Plaintiff avers that the trial court erred in allowing into evidence the testimony of Mr. Baggett with respect to what Rome told him at the time Rome applied for liability insurance, over plaintiff's counsel's objection that such testimony constituted inadmissible hearsay. The substance of Baggett's testimony was that Rome told him that he (Rome) did not have liability insurance at the time of the accident on April 12, 1982.
Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 at pages 85-86 (1972).
For this exception to apply, the declarant must also be unavailable to testify. Jack Neilson, Inc. v. Chicago Insurance Company, 429 F.2d 540 (5th Cir.1970).
In Campbell, supra, the Louisiana Supreme Court held that:
"Under the Louisiana Motor Vehicle Safety Responsibility Law, we regard the admission of non-insurance as a declaration against pecuniary interest. The existence of an uninsured status at the time of a collision requires either the payment of damages, the deposit of security, or the suspension of the driver's license. See LSA-R.S. 32:872.
Although plaintiff's suit was against the insurer alone, the insurer brought a third party demand against Gloria K. Gimnich, the declarant's wife. The major issues included the fault of the declarant's wife in causing the collision and the uninsured status of declarant's automobile. See Booth v. Fireman's Fund Insurance Company, supra. The existence of public liability insurance covering the use of the car was a matter within the personal knowledge of the owner. Neither the declarant nor his wife was available as a witness at the trial. Hence, the letter was admissible as a declaration against interest." (Footnote omitted.) Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 at page 86 (1972).
In the case at hand, though Rome was named as a party defendant, his whereabouts were unknown, service had not been made on him, and he was unavailable to testify at trial. Like the circumstances in Campbell, supra, Rome's statement that he was uninsured at the time of the accident was certainly a declaration against his pecuniary interests. Thus, both requirements for the admissibility of Baggett's testimony regarding Rome's declaration were satisfied. The trial judge correctly admitted into evidence the hearsay testimony of statements made by Rome. We find no merit in this assignment of error.
ASSIGNMENTS OF ERROR NUMBER 2 AND 4
Plaintiff, in her second and fourth assignments of error, alleges that the trial court...
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